Duke’s sexual misconduct policy for students on court hot seat for 2nd time

Duke University could be on the verge of its second major court loss in a month in cases that challenge how it deals with discipline of students accused of sexual misconduct.

Superior Court Judge Henry Hight has to decide soon on whether a jury should hear would-be Duke graduate Lewis McLeod’s claims that the university broke a contract in 2014 by trying to expel him after a campus hearing panel decided he forced himself on a female first-year student.

Duke wants the case dismissed, but Hight this week pressed the university’s lawyers to explain how the campus disciplinary process can protect “the rights of the accused” absent a contract between the institution and its students that guarantees those rights.

The problem the judge’s question created for Duke advocate Dan Hartzog Sr. is that the Durham school argues and the state’s courts have long agreed that for private universities at least, the promises of conduct-and-discipline policy handbooks like the Duke Community Standard in Practice aren’t actually binding.

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Hartzog faced up to the question squarely. “Public universities, then he has due process, things that the public has to offer that Duke doesn’t have to,” he said. “I mean Duke really gets to write the rules here. It’s a private university. If you choose to go to Duke, you choose to go with their rules. That is how it is.”

“Gold rules? He who has the gold makes the rules?” Hight inquired.

“I guess that’s one way you can look at it,” Hartzog answered.

But McLeod’s lawyer, Rachel Hitch, said an obvious contradiction in its position sets up the possibility that Duke is guilty of fraud.

“It cannot be Duke’s position that these are promises, but we don’t intend to be bound by them,” Hitch said. “After years of coming into court and saying they’re not contractual, they’re not contractual rights, what are they doing telling kids that they are rights?”

At the very least, “that gets me to a jury” next week with a chance to ask its members to decide whether Duke made its students a binding promise, she said, asking Hight to allow a trial.

Though McLeod’s cases dates from 2014, it has taken the two sides this long to swap evidence and deal with the other preliminaries involved in getting ready for a court battle.

The long delay means McLeod’s lawsuit’s re-emerging in the public eye just nine days after another student, Ciaran McKenna, won a similar one against Duke.

There, Durham Senior Resident Superior Court Judge Orlando Hudson ruled that Duke had broken the promises it made to McKenna, a recruited men’s soccer player from Scotland, when it tried to suspend him for six semesters over a case of alleged sex misconduct.

McKenna’s lawyers invoked his signing of an NCAA letter of intent and a Duke athletics scholarship to get around the university’s usual argument the Duke Community Standard doesn’t tie its hands in discipline disputes. The scholarship contract included a clause that alluded to Duke’s “regular disciplinary authority.”

McLeod, a former walk-on soccer player from Australia who was on the team in 2011 and 2012, apparently has nothing similar to lean on and so is mounting a frontal challenge to the university’s customary position.

The incident that landed him in trouble happened in November 2014 and, like McKenna’s, began when he met a woman at the Shooters II nightclub in Durham. As in McKenna’s case, McLeod claims a subsequent sexual encounter was entirely consensual.

The similarities end there, as McLeod allegedly took the woman, a freshman, to a fraternity house on Burch Avenue and allegedly ignored signals that she wasn’t interested in having intercourse. Duke’s investigation turned up a set of text messages from the woman that began soon after and indicated her objections to what had happened. Also recovered, Hartzog said, was a text from McLeod to her that said one of his “mates” had told him she was terrified of him.

The campus hearing board that ruled in McLeod’s case was entitled to hear his story and the woman’s and “believe one of them,” Hartzog said.

Hitch’s counter is that the Duke investigation was slipshod, in failing among other things to establish via witness testimony whether the woman was so incapacitated by alcohol that she couldn’t consent. She also contends the hearing chairwoman was biased, and that Office of Student Conduct Director Stephen Bryan manipulated the process behind the scenes.

All in all, “it was impossible for [McLeod] to get a fair hearing” despite Duke’s promise of one, Hitch said.

She acknowledged that the case is potentially precedent-setting because the legal “landscape is changing” around student-discipline cases, particularly ones that involve allegations of sexual misconduct.

The N.C. Supreme Court in 2013 considered overturning the existing doctrine that says student handbooks and similar documents aren’t binding on private universities, but deadlocked 3-3 and let it survive. The tie came because one justice, Barbara Jackson, recused herself from the case.

Hight promised the lawyers he’d decide by some time Monday, Feb. 26 whether or not to let the trial proceed.